Supreme Court New South Wales Medium Neutral Citation: Stav Investments Pty Ltd atf Stav Investments Family Trust & Anor v Taylor & Anor; LK Group Investments Pty Ltd v Taylor [2021] NSWSC 347 Hearing dates: 06 April 2021 Date of orders: 7 April 2021 Decision date: 07 April 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Order the plaintiffs to pay half the defendants' costs of the plaintiffs' notices of motion of 24 December 2020 to 18 February 2021 and order the defendants to pay the plaintiffs' cost of the motions thereafter Catchwords: COSTS – motion to strike out paragraphs in List responses – motion not pressed in full – balance of impugned paragraphs in List Responses not pressed Legislation Cited: Civil Liability Act 2002 Uniform Civil Procedure Rules 2005 Category: Procedural rulings Parties: Proceedings 2018/245168 Stav Investments Pty Ltd atf Stav Investments Family Trust (First Plaintiff) Scott Stavretis (Second Plaintiff) Andrew George Taylor (First Defendant) John Thomas Charles Wilkinson (Second Defendant) Proceedings 2019/376795 LK Group Investments Pty Ltd (Plaintiff) Andrew George Taylor (First Defendant) John Thomas Charles Wilkinson (Second Defendant) Representation: Counsel: T E O'Brien (Plaintiffs) H Somerville (Defendants) Solicitors: Marque Lawyers (Plaintiffs) TPS&Co Lawyers (Defendants) File Number(s): 2018/245168; 2019/376795 Judgment 1. These two proceedings are travelling together. They are listed for hearing for 10 days commencing 5 October 2021. 2. By notices of motion filed on 24 December 2020 the plaintiffs sought orders pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that paragraphs in the defendants' List Responses seeking to invoke the proportionate liability provisions in Part 4 of the Civil Liability Act 2002 (NSW) be struck out. 3. The impugned provisions in the List Response in the 2018 proceedings alleged that the second plaintiff, Mr Stavretis, and the law firms Addisons and Marque Lawyers were concurrent wrongdoers. 4. In the 2019 proceedings, the List Response alleged that Mr Stavretis, a Mr Kestelman, as well as Addisons and Marque Lawyers, were concurrent wrongdoers. 5. In submissions dated 18 February 2021, Mr O'Brien, who appears for the plaintiffs in both proceedings, stated that the plaintiffs did not press their strikeout application otherwise than in respect of the contentions in the List Responses that Addisons and Marque Lawyers were concurrent wrongdoers. 6. I heard argument about that matter on 24 February 2021, the result of which was that I directed the defendants to circulate further draft List Responses repleading their contentions concerning Addisons and Marque Lawyers as alleged concurrent wrongdoers. 7. On 31 March 2021, the defendants' solicitors informed the plaintiffs' solicitors that the plaintiffs did not seek to press allegations that Addisons and Marque Lawyers were concurrent wrongdoers. 8. In these circumstances, there is a dispute as to what orders should be made concerning the costs of the plaintiffs' notices of motion of 24 December 2020. 9. The plaintiffs have achieved some measure of success in that the defendants no longer press the contentions that Addisons and Marque Lawyers were concurrent wrongdoers. 10. On the other hand, although the plaintiffs initially sought to strike out the allegations that Mr Stavretis and Mr Kestelman were concurrent wrongdoers, that application has, in effect, been withdrawn. 11. In those circumstances, my opinion is that the appropriate order for costs is that the plaintiffs pay half of the defendants' costs to 18 February 2021 (on the basis that half of the costs by then incurred by the defendants are likely to have been thrown away by the plaintiffs' decision not to press fully their application) and that the defendants pay the plaintiffs' costs since 18 February 2021. 12. I make the following orders in both proceedings: 1. Direct that the defendants file and serve an Amended Commercial List Response by 5pm on 12 April 2021. 2. Order that the plaintiffs pay half of the defendants' costs of the plaintiffs' notices of motion of 24 December 2020 to 18 February 2021 and that the defendants pay the plaintiffs' cost of the motions thereafter. 3. Order that the plaintiffs' notices of motion of 24 December 2020 be otherwise dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2021